Menu

10 – Habeas Corpus Act 1640

The `Habeas Corpus Act 1640` is an Act of the Parliament of England (16 Cha I. c. 10) with the long title `An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber.` The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas Wentworth, 1st Earl of Strafford in 1641 and before the English Civil War. It abolished the Star Chamber.

is an Act of the Parliament of England (31 Cha. 2 c. 2)[1] passed during the reign of King Charles II to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained can be ordered to be prosecuted before a court of law.

The Act is often wrongly described as the origin of the writ of habeas corpus, which had existed for at least three centuries before. The Act of 1679 followed an earlier act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816 and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.

The Act came about because the Earl of Shaftesbury encouraged his friends in the Commons to introduce the Bill where it passed and was then sent up the Lords. Shaftesbury was the leading Exclusionist—those who wanted to exclude Charles II’s brother James, Duke of York from the succession—and the Bill was a part of that struggle as they believed James would rule arbitrarily. The Lords decided to add many wrecking amendments to the Bill in an attempt to kill it; the Commons had no choice to pass the Bill with the Lords’ amendments because they learned that the King would soon end the current parliamentary session.

The Bill went back and forth between the two Houses, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each ide—those voting for and against—appointed a teller who stood on each side of the door through which those Lords who had voted “aye” re-entered the House (the “nays” remained seated). One teller would count them aloud whilst the other teller listened and kept watch in order to know if the other teller was telling the truth. Shaftesbury’s faction had voted for the motion, so they went out and re-entered the House. Gilbert Burnet, one of Shaftesbury’s friends, recorded what then happened:

“Lord Grey and Lord Norris were named to be the tellers: Lord Norris,
being a man subject to vapours, was not at all times attentive to what
he was doing: so, a very fat lord coming in, Lord Grey counted him as
ten, as a jest at first: but seeing Lord Norris had not observed it, he
went on with this misreckoning of ten: so it was reported that they that
were for the Bill were in the majority, though indeed it went for the
other side: and by this means the Bill passed.” [2]

The clerk recorded in the minutes of the Lords that the “ayes” had fifty-seven and the “nays” had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.[3]

The King arrived shortly thereafter and gave Royal Assent before proroguing Parliament. The Act is now stored in the Parliamentary Archives.